AFR

Court No. - 2

Case :- CRIMINAL MISC. WRIT PETITION No. - 7685 of

2022

Petitioner :- Mohar Pal And Another

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Harikesh

Counsel for Respondent :- G.A.

Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Gautam Chowdhary,J.

Heard learned counsel for the petitioner and learned counsel for

the State.

By way of this petition, the accused-petitioners pray for

quashment of the impugned first information report dated

25.02.2022 in Case Crime No. 120 of 2022 under Sections 420,

406, 120B India Penal Code (I.P.C.), Police Station Sungarhi,

District Pilibhit and also for staying their arrest in respect of the

aforesaid first information report.

Both the petitioners have alleged to have committed what can

be said to be offences under Sections 420, 406, 120B of IPC.

The allegations in the FIR are very categorical that the first

informant is aged about 28 years and he is doing business. The

petitioner no.1, namely, Mohar Pal and the petitioner no.2,

namely, Suresh have also into business. The first informant

moved to the Magisterial Court, who after verifying the facts,

issued direction to the police officer to investigate and took

cognizable case as the informant had get machines on

concessional rates by the petitioner no.1. The bank transaction

of Rs.2,03,280/- from the bank of the informant was made to

the petitioner, Mohar Pal. Despite the money being given by

way of bank account, no machine was supplied to the

informant. This itself shows the culpable mind of the accused

Mohar Pal and therefore, the complainant has alleged

commission of offence under Section 420, 406, 120B IPC.

Thereafter, Kamlesh Singh to whom the money was also sent,

issued a cheque after deducting commission. The amounts

could not be realized and therefore, the informant again

requested both the accused along with his brother but they have

locked the premises and are not available. On 22.06.2021, a

first information was given to the Superintendent of Police,

Pilibhit but no action was taken and therefore, the informant

moved the Court which has directed investigation as it is prima

facie found that cognizable offence has been committed by the

accused.

It is submitted by learned counsel for the petitioners that the

alleged incident occurred on 25.08.2020 but the FIR was lodged

on 25.02.2022 without any proper explanation. It is further

submitted by learned counsel for the petitioners that Sections 4

and 5 of the Cr.P.C. would be applicable as according to the

petitioner's counsel, the offence alleged to be committed under

the Negotiable Instrument Act

These facts go to show that it is not a matter which falls under

the Negotiable Instrument Act as sought to be canvassed by

learned counsel for the petitioners. The provisions of Section 4

of Cr.P.C. read with Section 5 relate to procedure where

commission of offence under the Special Act. In the present

case, the informant has invoked the criminal jurisdiction and

not the jurisdiction under Section 138 of the Negotiable

Instrument Act and therefore, Section 5 cannot be made

applicable.

Sections 4 and 5 Cr.P.C. read as follows:-

"4 Cr.P.C. Trial of offences under the Indian Penal Code and other laws.-

(1) All offences under the Indian Penal Code (45 of 1860 ) shall be

investigated, inquired into, tried, and otherwise dealt with according to

the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into,

tried, and otherwise dealt with according to the same provisions, but

subject to any enactment for the time being in force regulating the manner

or place of investigating, inquiring into, trying or otherwise dealing with

such offences.

"5 Cr.P.C. Saving.- Nothing contained in this Code shall, in the absence of

a specific provision to the contrary, affect any special or local law for the

time being in force, or any special ju